River's Civil War

While the Supreme Court Justices soak up arguments presented by both Maryland and Virginia concerning rights to access water from the Potomac River, some Potomac residents who have been involved in the issue from the beginning expressed grave concerns.

"It's like we have to fight a Civil War over the Potomac. Neither state seems ready for agreement,” said Neal Fitzpatrick, executive director of the Audubon Naturalist Society, outside the Supreme Court last Tuesday, Oct. 7.

Disputes between the two states over rights to the river have existed for more than 400 years. More recently, the Fairfax County Water Authority sought a permit from Maryland, in 1996, to construct a $10 million water intake pipe that extends 725 feet from the Virginia shore into the middle of the Potomac, across from Riley's Lock in Potomac.

Fairfax said it needed to move its intake pipe away from the shore to lessen sediment — likely to contain contaminants — in the water. The intake pipe will serve 1.2 million people in Northern Virginia.

Fitzpatrick, a Potomac resident, was also concerned that the arguments before the court did not address how much water the Potomac River needs to remain healthy. "I'm not happy with unresolved environmental issues," he said.

"It's all part of a long-standing process. The issue is how much can you suck out of the river. That's a question that definitely has to be answered."

The Maryland Department of the Environment formally refused to issue a permit in Dec. 1997, but Fairfax County Water Authority appealed the decision two weeks later. In Feb. 2000, Virginia filed a complaint with the U.S. Supreme Court after growing frustrated with the amount of time it took Maryland to issue the permit. The Supreme Court granted Virginia's motion in March 2000.

Maryland issued the permit in January 2001 and the Fairfax County Water Authority finished construction of the project earlier this year.

But Virginia pushed forward with its case, asking the Supreme Court to establish Virginia's right to take water out of the Potomac in the future without first seeking a permit from Maryland.

Special Master Ralph I. Lancaster Jr., appointed by the Supreme Court on Oct. 10, 2000, recommended that the Supreme Court side with Virginia.

"Its citizens have the right, free of regulation by Maryland, to construct improvements in the Potomac … and to withdraw water from the Potomac," wrote Lancaster.

Lancaster wrote that a declaratory judgment, if issued by the Supreme Court, would make it clear to other Virginians and Virginia water authorities whether it could build improvements to the Virginia shore without having to go through Maryland for approval.

The Fairfax County Water Authority and the Loudoun County Sanitation Authority, wrote Lancaster, have both said "they will require larger quantities of water from the Potomac River in the future and that their current water supply planning has been harmed by the political uncertainty associated with Maryland's control of their Potomac River access."

Virginia has asked the Supreme Court to relieve its citizens from Maryland's water construction permit system.

Del. Jean Cryor (R-15) also attended the hearing.

"If Maryland owns the river but can't regulate it, where are we?" asked Cryor.

The Supreme Court is scheduled to deliver its verdict sometime during the 2003 Supreme Court session.